Legal humor. Seriously.

July 26, 2010

Warning: Sharp Thing May Cut Hand

Here's a case report describing a recent filing in San Francisco County:

Brendan H__ v. KatachiSF Inc. dba Katachi, No. CGC-10-501116 (San Francisco Super. Ct. filed 6/28/10). Personal injury action in which the defendants failed to warn the plaintiff that playing with a sharp sword displayed in its store would result in the plaintiff slicing his hand when he attempted to place it back in its sheath.

Now, I don't have all the facts, but somehow I don't think a sharp-sword warning would have prevented this injury. It seems clear at this point that the only really foolproof way to keep people from cutting themselves with sharp things is to put an end to sharpness altogether.

The U.K., of which "nanny state" seems to be a more and more accurate description all the time, is already well down this path. For years some people there have been calling for the elimination of knives that end in a point, claiming that a ban on points would reduce accidents and make it impossible (or at least a lot more difficult) for people to stab each other. See "British Medical Experts Say Knives Too Pointy, Call for Ban," Lowering the Bar (May 28, 2005); see also "British Manufacturers Offer Pointless Anti-Stab Knives," Lowering the Bar (June 16, 2009). These people also claim that blunt-ended knives work just fine in the kitchen, and I guess that's true, unless you need to stab somebody in your kitchen.

According to the anti-point crowd, the pointed knife tip is just a holdover from the pre-fork era, when the knife was also used to spear pieces of meat. Since the invention of the fork, these people say (or at least since its wide adoption in the West – there's at least one fork in the Bible, and not the one you think), knife points merely pose unnecessary risks. This is not at all a new idea, as it turns out. In 1669, Louis XIV, who understood very well the association between pointy things and stabbings, ordered all non-royal knife points to be ground down. This immediately ended all violence in France and made the monarchy secure. Temporarily, at least. As his great-great grandson found out, the edge of a blade can be a real problem, too. [Note: thanks to the reader from France who reminded me that, for complicated reasons, Louis XVI was not the grandson of XIV.]

Which brings me back to swords, though this is not a very big step since swords are just really big knives. In England and Wales, carrying a sword in public has been illegal for some time, and in 2008 it became illegal to buy, sell, or import samurai swords like the one involved in the case above. Cheap (but sharp) reproductions apparently were widely available and were being, shall we say, misused. Similarly, in Scotland -- ironically, the land depicted in both Braveheart and Highlander – also has very strict sword-control laws, although these laws do not seem to have succeeded in keeping people from running around waving the things, either individually or (in at least one case of which I'm aware) in gang swordfights. See "There Can Be Only Twelve," Lowering the Bar (Aug. 21, 2006).

Here in the U.S., given the recent McDonald decision extending the Second Amendment to the states, it now seems clear that swords could not be banned. See McDonald v. Chicago, No. 08-1521 (U.S. June 28, 2010). That case of course involved firearms, but the Court specifically noted that the right to self-defense that is part of the premise of the Amendment dates back to "ancient times," when people certainly used swords, knives, and quite possibly forks, if necessary, to defend themselves. It is also clear from McDonald, however, that some regulation of arms is still permissible. But passing a law saying that swords could not be sharp would be like saying you have the right to own a gun but not the bullets. And that -- in case somebody is furiously writing down that idea -- would be the same as banning the weapon, and so would be just as unconstitutional.

So, Mr. H (whose last name I am withholding in the unlikely event there is more to the story) could not be protected from himself by a ban on swords, and it also seems unlikely they could constitutionally be blunted. Is he entitled to a warning that the sword with which he has been playing, and is about to unsuccessfully attempt to sheathe, might be sharp? The answer to that question would involve different legal principles, like maybe the doctrines of "open and obvious danger" or "assumption of the risk," both of which may pose serious obstacles to this claim. If the case doesn’t get dismissed before trial, Mr. H might want to work on his other martial-arts skills (if any). He may need them to defend himself against members of the jury that ends up getting stuck hearing his case.